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2019 Supreme(Ori) 81
IN THE HIGH COURT OF ORISSA, CUTTACK
A.K. RATH, J.
Puspa Nayak And Others — Appellant
Versus
State Of Orissa And Others — Respondent
R.S.A.No.562 of 2003
Decided on : 04-04-2019
Advocate Appeared:
For the Appellant :Mr.Tapan Kumar Mandal, Advocate
For the Respondent:Mr.Ram Prasad Mohapatra, A.G.A. and Miss.Samapika Mishra, A.S.C. Mr.Deba Ranjan Ray, Advocate
A suit for declaration of title by way of adverse possession is not maintainable, as emphasized by the court's reliance on the decision in Gurdwara Sahib v. Gram Panchayat Village Sirthala.
Headnote:
Adverse Possession - Suit for Declaration of Title - Orissa Government Land Settlement Act - [Adverse Possession] - [Declaration of Title] - [Orissa Government Land Settlement Act]
Fact of the Case:
Plaintiffs filed a suit for declaration of title by way of adverse possession and permanent injunction over a disputed land. The defendants contested the claim, denying the plaintiffs' possession and asserting use of the land by villagers as a playing field.
Finding of the Court:
The trial court dismissed the suit, concluding that the plaintiffs had not acquired title by way of adverse possession. The appellate court also dismissed the appeal, and the High Court upheld the decision, emphasizing that a suit for declaration of adverse possession is not maintainable.
Issues: The main issue was whether the suit for declaration of title by way of adverse possession was maintainable.
Ratio Decidendi: The court relied on the decision in Gurdwara Sahib v. Gram Panchayat Village Sirthala, emphasizing that a plaintiff in adverse possession cannot seek a declaration that such possession has matured into ownership. The court also noted that the element of hostile animus was absent in the plaintiffs' case.
Final Decision: The appeal was dismissed as it did not involve any substantial question of law, and no costs were awarded.
JUDGMENT :
A.K. Rath, J.
Plaintiffs are the appellants against the confirming judgment in a suit for declaration of title by way of adverse possession and permanent injunction.
2. An area ad measuring Ac.2.10 dec. of land appertaining to sabak khata no.24, plot no.234/1, Ac.0.60 dec., sabak plot no.235, Ac.1.10 dec. and sabak plot no.236/1, Ac.0.40 dec. of mouza-Sendha, Dist-Deogarh is the subject matter of dispute.
3. The case of the plaintiffs is that Kartikeswar Nayak, husband of plaintiff no.1 and father of plaintiff nos.2 to 4 reclaimed the suit land in the year 1965. The Tahasildar, Deogarh initiated Encroachment Case no.507/74 against him and realized back rent and penalty for nine years. After his death, the plaintiffs are in possession of the same. Again an Encroachment Case no.36/81-82 was initiated by the Tahasildar against them. They are in possession of the suit land peacefully, continuously and with the hostile animus to the defendants for more than statutory period and, as such perfected title by way of adverse possession.
4. State of Orissa-defendant no.1 entered contest and filed written statement denying the assertions made in the plaint. It is pleaded that the plaintiffs are not in possession of the suit land. Kartikeswar Nayak paid back rent and penalty. He admitted title of defendant no.1. The villagers of Sendha are using the suit land as their playing field. The suit land is adjacent to the school. Kartikeswar Nayak had properties in his native village. Kartikeswar Nayak had been evicted on 15.10.1982 in L.E.Case No.36/81-82.
5. Defendants 2 to 6, the villagers, filed a written statement pleading inter alia that Kartikeswar Nayak had vast landed properties in his native village. He was not a landless person. He had not reclaimed the suit land. The villagers are using the suit land as their play ground. They have excavated the tank over a portion of the suit land. The plaintiffs have not acquired title by way of adverse possession.
6. Stemming on the pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding inter alia that in Encroachment Case no.36/81-82, the Tahasildar came to a conclusion that the plaintiffs were not in possession of the suit land and, accordingly, dropped the case. Kartikeswar Nayak was not in possession of the suit land for more than thirty years. Kartikeswar Nayak was working as a Clerk in Chhendipada High School. He left the job in the year 1970. Thus, the question of reclamation of the suit land by him in the year 1965 appears to be doubtful. In Ext.A/1, Kartikeswar Nayak admitted that he possessed the suit land in the year 1975. There is no evidence on record that Kartikeswar Nayak was in possession of the suit land for more than thirty years. The plaintiffs have not acquired title by way of adverse of possession. Unsuccessful plaintiffs filed T.A.No.8 of 2002 before the learned Additional District Judge, Deogarh, which was eventually dismissed.
7. Heard Mr.Tapan Kumar Mandal, learned Advocate for the appellants and Mr.Ram Prasad Mohapatra, learned A.G.A. along with Miss.Samapika Mishra, learned A.S.C. for respondent no.1, Mr.Deba Ranjan Ray, learned Advocate for respondent nos.2 to 5.
8. Mr.Mandal, learned Advocate for the appellants submits that Kartikeswar Nayak was in possession of the suit land peacefully, continuously and with the hostile animus to the defendant no.1 for more than statutory period and, as such, perfected title by way of adverse possession. L.E.Case No.36/81-82, Ext.C, was exhibited after closure of evidence without providing opportunity of hearing to the plaintiffs. The plaintiffs had also been prevented to file appeal against the order of eviction. The plaintiffs are landless schedule castes persons. Under the provision of the Orissa Government Land Settlement Act, the land ought to have settled in their favour. The plaintiffs made an application on 15.10.1982, Ext.1
